Child and Family Protection Bill

Hon NATHAN GUY (Associate Minister of Justice) Link to this

I seek leave for all provisions of the bill to be taken as one question with multiple calls.

Hon NATHAN GUY (Associate Minister of Justice) Link to this

I think it is worthwhile to make a few introductory remarks about the very important Child and Family Protection Bill. It builds on the Government’s existing policies and legislation dealing with serious issues in relation to domestic violence, and it ensures that courts can act to protect children and families from all kinds of violence and abuse. It also addresses the risk of children being wrongfully removed from New Zealand.

I will take a little time to move through the important aspects of this bill. In particular, Part 1 amends the Domestic Violence Act 1995 to provide for greater protection of the child victims of domestic violence and to improve court processes. The Justice and Electoral Committee recommended amending clause 6 to provide that a protection order would automatically continue for the benefit of children of applicants’ families, irrespective of their ages, while they continue to live with the applicants. This amendment removes the onus on young people still living with applicants to apply to the court for continued cover.

Clause 7 enacts the repealed section 54 of the Care of Children Act into the Domestic Violence Act, which enables the court to make interim care or contact orders to protect the welfare and best interests of the child when a protection order has been made. Clause 8 enables a registrar to amend the direction to the respondent to attend a Stopping Violence Service programme, by specifying a later date or different place. This amendment will help, for example, in cases where a direction to attend a programme is served on a respondent too late for the respondent to attend on a specified date. The bill also extends from 5 days to 10 days the period of time in which a respondent has to object to attending a programme. Clauses 10 and 12 clarify the transition between temporary and final protection orders by ensuring there is no opportunity for a lapse between the temporary order and the final order.

The select committee recommended that the provision is amended to allow explicitly a lawyer appointed to act for the child under the Care of Children Act, and any person whom the Family Court judge permits, to attend the review of contact arrangements. That amendment relates specifically to clause 13. To address any uncertainty about whether a judge needs specifically to discharge a temporary order when making a final order, clauses 14 and 15 clarify that the temporary order is automatically discharged. Finally on Part 1, clause 16 enables a lawyer who is appointed to act for a child in guardianship or parenting order proceedings under the Care of Children Act to be present at the hearing of proceedings under the Domestic Violence Act involving that child.

Part 2 amends the Care of Children Act 2004. It provides for enhanced consistency between the Domestic Violence Act and the Care of Children Act with regard to psychological abuse, and reduces the risk of children being wrongfully removed from New Zealand. The amendments introduce the concept of psychological abuse into the application of parenting orders but only where a protection order has been made against a respondent on the grounds of psychological abuse. The select committee recommended widening the definition of “protection order” to include those made by sentencing judges in the criminal courts on behalf of victims, as enabled by the Domestic Violence (Enhancing Safety) Act.

Part 3 specifically amends the Adoption Act 1955. It creates a new offence, under the Adoption Act 1955, of improperly inducing consent for the adoption of a child, which is to be punishable by up to 7 years’ imprisonment. New Zealand has ratified the United Nations Convention on the Rights of the Child but is among a minority of countries that have not ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. The proposed new offence contained in Part 3 is the last legislative change necessary to enable New Zealand to ratify the optional protocol.

Clause 32 also provides that the offence is punishable by imprisonment for a term not exceeding 7 years, and that there will be wide extraterritorial jurisdiction for the new offence. This means that even if the offence occurred wholly outside New Zealand, New Zealand may still bring proceedings if the victim or the person to be charged is a New Zealand citizen or resident, or if the person to be charged has been found in New Zealand and has not been extradited. The select committee recommended amending the proposed new offence so that it applies not only to individual people but also to agencies and bodies corporate that are involved in inducing consent to an adoption.

LYNNE PILLAY (Labour) Link to this

I stand and speak, obviously, in support of the Child and Family Protection Bill, because Labour certainly supports any bill that provides more protection for children and, predominantly, for women in New Zealand. So we support this bill, but we support it with a little bit of sadness in that it does not go far enough.

I have said it before in this House, and I will say it again: there is a more comprehensive bill languishing on the Order Paper at the moment. That bill, the Domestic Violence Reform Bill, was introduced by Annette King in 2008, and it was following extensive—

SIMON BRIDGES (National—Tauranga) Link to this

The Child and Family Protection Bill is a highly worthy bill, because ultimately it is about better providing for the welfare of children and families. It does that by amending the Domestic Violence Act 1995, the Care of Children Act 2004, and the Adoption Act 1955. Perhaps unlike other speakers throughout the first and second readings, and in this Committee stage, I will focus on the last Act, the Adoption Act 1955, and the amendments that we are making there. I suggest that they are very important ones, and I will focus on them shortly.

The Bills Digest, in really quite banal terms, talks about the fact that the Adoption Act amendments deal with “an increase in the international movement of children for adoption purposes. … Current powers are inadequate to deal with the modern day international movement of children for adoption purposes. New provisions are required to fulfil New Zealand’s commitment to protecting the welfare and best interests of children, and to make it easier to prosecute offences relating to intercountry adoptions.” I agree with that. What we are doing is excellent. We are making sure we are complying with the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. That gets closer to what this is about.

This is not something that is banal. It is banal, perhaps, in the frequency of it, and how common it is, sadly, in the world we live in. But I suggest that what we are dealing with here, in living up to our international obligations, is the era we are living in, which is the era with the most pervasive human rights violations. We are talking about the oppression of children and women worldwide, about sex trafficking, forced prostitution, gender-based violence such as genital mutilation, the killing of children and women simply on the basis of their sex, and stonings. We are not talking about small numbers of people; we are talking about many millions of women and children every year. We are talking about billions and billions of dollars every year when we talk about sex trafficking. So this is a very important issue, in my view.

We can look back at the history of slavery worldwide and at what William Wilberforce did two or three centuries back, and of course we say that was great. He ran a crusade, effectively, and towards the end of his life ultimately won and saw the end to slavery of black people in Britain at least. But today, in the world we live in, the slavery of children and women continues and persists at a very pervasive level, and involves millions and millions of children and women.

One of the things that is influencing my thinking a lot is a book I am reading at the moment called Half the Sky by Nicholas Kristof and Sheryl WuDunn. They are Pulitzer Prize winners on the issues of sex trafficking, forced prostitution, gender-based violence, and so on. They make the case that this is terrible, but they—and I have not read to the end of their book, but I can tell where it is going—push the theme that action and condemnation at an international level can work, and that we can make a difference. We have to be very careful how we do it. A senator pushed through a bill in the United States of America to ensure that child labour laws were toughened up around the world, and that American law did toughen things up. But, in doing so, he saw child labour go down and child sexual slavery increase as the children went out of the clothes shops and into the sex shops. We would not want to see that happen.

JACINDA ARDERN (Labour) Link to this

It is always a pleasure to follow on from Simon Bridges, who called the Child and Family Protection Bill a worthy bill. He is probably the only person in Parliament who could patronise a piece of legislation in such a way.

Before I begin, there were three things that came through strongly for me that this bill was trying to achieve. Some things had greater focus than others, but the first was, obviously, the extension of protection to children who are victims of domestic violence. Another element, to a certain degree, I believe, was expediency. The third element was fulfilling our international obligations, although that was not the only catalyst for the sensible provisions contained in the bill. But it is still my view, and the view of Labour, that we could have gone further under each of those headings.

I will touch on them quickly, but before I do I shall make a quick general point about children coming through our justice system. Whether it be under the provisions of legislation such as this, or as witnesses through our Family Courts or our criminal courts, it is becoming more and more obvious through work by academics that our justice system takes too long when dealing with young people, in whatever facet—as a victim or a witness. It is incredibly important that we process children through our justice system as rapidly as possible, for lots of reasons: if they are a witness, it is due to their ability to remember a particular circumstance; if they are a victim of domestic violence, it is for the obvious reason that that is traumatic.

Under that heading, I absolutely endorse anything we can do to speed up the process, and there are elements of the bill that do that. But, at the same time, legislation has been passed in the past in relation to the use of judicial officers in the Family Court, which also could speed up the process when children are involved. I implore the Government to take up that opportunity. It already exists in legislation and it is something that the Government could pick up tomorrow if it chose, but I believe that it currently is not a priority.

The second quick point I would like to make is that when it comes to domestic violence legislation, I think this House has a tendency to implement and forget. That is a very natural thing. We are legislators and often we rely on people on the ground to implement the policy that churns out through this process. But when it comes to domestic violence legislation, in particular, I have heard reports that recent domestic violence legislation that the Justice and Electoral Committee has been involved in, including the police safety orders, may not be working in the way in which Parliament intended. I would like to add to the record my hope that for such pieces of legislation future select committees, including the Justice and Electoral Committee, could review the way that the legislation works on the ground, perhaps in 12 months’ time. If indeed the legislation is not performing in the way that we intended, if victims are not being protected and children in particular are not being protected in the way that we intended, that is something that Parliament should be involved in reviewing. That goes for the police safety orders, if the reports I have heard are anything to go by.

Focusing specifically on those elements that I have touched on—the protection, the expediency, and the international obligations—I will touch on some of the points that the Associate Minister of Justice made. Obviously, he pointed to the fact that this bill was about extending the protection for children. The select committee honed in on that point when it considered amending clause 6(2). When the bill came to the select committee, protection orders that covered children were set to expire by virtue of their age rather than their circumstance and rather than their family’s circumstance. The select committee considered that, and decided that, instead, it felt it was important that the protection period be extended to cover the time period that a young person was resident in the home of the person who originally made an application for a protection order, and I think that is right.

But we also should have gone a step further. If the Associate Minister is correct in stating that this bill is about protecting young people and children, I hope the Government will vote with us on the amendment that I have put forward in this regard. Our view was that once young people, even those beyond the age of 17, leave a residence they are more vulnerable than perhaps they are when they are still in the home of their family member. For instance, they could be going into an independent living situation. There is very little harm in empowering young people currently covered by a protection order by saying that if they choose not to be covered by it, they may opt out at any time. In fact, that feeds into this idea of expediency and efficiency, which I would have thought the Government would also support. So our preference was to have an opt-out situation that was not bound by age or circumstance but was simply left up to the young person. I see very little harm in having such a provision in the legislation, and a lot of things sit in favour of operating the system in that way. I implore the Minister in the chair, the Associate Minister of Justice, to speak to that point in particular, and to tell me why the Government does not support it.

However, if the Government wants to stick with age-based provisions, we would also like to see the definition of a young person changed, because one element of this bill is our international obligations. It is very good that we are picking up on the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, but it is disappointing that the founding document, the United Nations Convention on the Rights of the Child, continues to be neglected at its very core, and that is the point at which New Zealand continues to treat the definition of a young person. I know that all the politics sits around the idea of the criminal age of responsibility, but we continue to contend that there are enough elements now of our legislation that give flexibility for the courts to deal appropriately with the severity of an offence. We should now move to increase the age to 18, and to fulfil our obligations under the United Nations Convention on the Rights of the Child. This would be a prime time to do it; that is why I am giving the Government that option by putting forward an amendment by which it can change the definition. It would be a bit of a saving grace, because I imagine that the Government will be coming up for a review of how well it is fulfilling its obligations under that convention very, very soon. There is no doubt that this will be a point on which the committee will ask the Government questions at an international platform, and my amendment provides the opportunity for the Government to rectify that wrong. It would have many positive spin-offs, not just for this legislation in terms of widening the protection for children and young persons but in other areas where we currently have gaps in our service provision of care and protection. I implore the Government to take up that fine wee opportunity.

The Associate Minister also talked about the processing of orders. Again, this bill was an opportunity to pick up something that the Family Court judges have raised with us, which is their inability to enforce some of the orders issued by the court. I had hoped that the Government would have taken the opportunity to give greater powers in that regard, because in some cases those provisions are being flouted directly. The Family Court has brought that to our attention, and this bill was an opportunity to rectify that situation.

I also bring to the attention of the Committee the fact that time and time again, when we come up with domestic violence legislation such as this, we hear quite personal stories of women in families who feel that they have not been adequately provided with the information they require to understand the process they are going through, and to understand the protections they do or do not receive through our domestic violence legislation. I think we could have improved that issue in two ways through this legislation. One way was to give applicants the ability to attend information sessions, so that they could make better use of the protection orders that are being issued. That comes right to the core of safety for the applicants—and their children, in many cases. We could also have added a provision that would have required any judge who declines a without notice application, which would be an extraordinary circumstance, to at least give the applicant written reasons as to why it has been declined. That provision would give applicants the ability to determine whether to go ahead and proceed on notice with a protection order. If this bill was about processing quickly and giving greater certainty to victims and families, that would have been a sensible provision to include in it, too.

Dr RAJEN PRASAD (Labour) Link to this

Thank you very much for the opportunity to take a call, and I also have put on my green bandana to show my support for CanTeen—young people living with cancer—this week. I really acknowledge the work of many of the young people who also work with other young people who are suffering from cancer.

The Child and Family Protection Bill is a very important bill—it is a crucial bill—for New Zealand, because it addresses such a serious issue in our homes, in our society, and in our communities—the problem of domestic violence. The bill addresses a large number of aspects of domestic violence to do with children, and I will come back to that as I speak to particular clauses.

Too many lives in our country are affected by domestic violence. Having worked in this area for a long period, and having led the Families Commission through the It’s Not OK campaign and the work behind that, one begins to realise what a serious issue this is in New Zealand society. Any work that the Government does, and any work it has done, to reduce violence in our society and to address it is strongly supported by members on this side of the Chamber. We need only to consider that in 2008, 82,692 incidents involving some form of domestic violence occurred. The figures are astronomical—4 to 10 percent of New Zealand children have experienced physical abuse. These are the kinds of matters that the provisions of this bill address. In 2007, 6,400 children were involved in applications for protection orders, which are a major aspect of the provisions of this bill, as well. New Zealand’s performance compared with other OECD countries, particularly when it comes to child deaths, is abysmal. The cost of this to the country, as evaluated by Every Child Counts, is over $2 billion. So this is an important bill for those particular reasons.

The bill introduces a number of important provisions. It makes changes to three Acts in order to protect the children who are victims of domestic violence. Clause 6 amends section 16 of the Domestic Violence Act 1995. It makes clear that a protection order applies for the benefit of a child of an applicant until the age of 17—and that is an important part—unless the order is discharged. The Justice and Electoral Committee recommended amending clause 6 to provide that a child of the applicant’s family would not be required to apply to the court for a direction that the protection order continue to apply for his or her benefit after turning 17 years of age while the child continues to ordinarily or periodically reside with the applicant.

There is an important amendment, in the name of Jacinda Ardern, to the bill to change the age to 18 years. Another amendment to clause 6, in the name of Lynne Pillay, states that the protection order should extend to when a child no longer wishes to be subject to it. Those are very, very important aspects of this bill, which are missing at the moment. Those are its shortcomings. As the previous speaker and my colleague, Jacinda Ardern, said, this is an opportunity to address those aspects of the bill. The Minister in the chair, the Hon Nathan Guy, needs to explain why that is not possible and what the difficulties are with that. This is an important opportunity to explain that aspect.

The bill also amends the Care of Children Act 2004. Perhaps the most satisfying aspect of the provisions here is the inclusion of psychological abuse. Psychological abuse is one of those silent killers that one sees so often, yet because it leaves no marks and no visible signs of abuse there are few provisions to address it. The knowledge that it will now be one of the important aspects that the Family Court will take into account is also an important aspect of this bill.

I am also pleased, having worked in the adoption area myself over the years, that the bill addresses some of the issues under the Adoption Act and will address some of the international matters that need to be addressed. I am pleased to see that as well. But perhaps the disappointment with this bill is that the opportunity has not been taken for a comprehensive examination of this matter. Thank you.

SU’A WILLIAM SIO (Labour—Māngere) Link to this

I rise to take a call on the Child and Family Protection Bill. I acknowledge my colleagues Dr Rajen Prasad and Jacinda Ardern who have spoken before me. Although they were not members of the Justice and Electoral Committee that considered the bill and the submissions to it, they have had quite a lot to do with the Social Services Committee where we have had the opportunity to visit the surrounding organisations that deal with a lot of these issues in the Wellington region. I note that the National-led Government prides itself on its record in this area. It claims that this is another bill to protect the victims of domestic violence. I say, with the greatest respect to the House, that this bill will not solve domestic violence. This bill will not protect families and children; people need to do that. I think the bill is an important part of it but I do not think that, as we have repeated time and time again, it goes far enough to address the issue.

There has been considerable debate around domestic violence, up and down the country. I note that there always seems to be a tendency to blame one sector of society for this issue. I recall that the Minister for Social Development and Employment at one point in time appeared to point the finger at Māori. Others will point the finger at Pacific communities. I re-emphasise the point that I have made in numerous speeches in this House: domestic violence, family violence, and violence and abuse against children is not a Pacific or a Māori issue; it is an issue for this country. Until we are able to address it from that perspective, and what will be good for New Zealand and good for the future of this country, we are merely just tinkering around the edges, which is one of the famous lines of this Government.

I think it is very, very important for us to accept that no one party will be able to address this issue. The parties need to look critically at the point that the bills in themselves do not solve this problem. I hope that in stressing that point the Minister and this Government will at least consider the amendments introduced by the Opposition. I hope they will also consider the work that Labour has done in this regard. I refer of course to Labour’s Domestic Violence Reform Bill, which at the moment is languishing at the bottom of the Order Paper. That bill changes the definition of a child in the Domestic Violence Act. It raises the issue that we heard from submitters that children under the age of 18, in accordance with the United Nations Convention on the Rights of the Child, need to be considered. The submissions made on this bill need to be considered in those terms. That is a factor that was raised consistently by submitters, and particularly by organisations that deal with our young people.

The other important point is the provision that requires any judge who declines a without notice application for a protection order to provide written reasons for declining the application, enabling the applicant to decide whether to proceed on notice. National’s bill does not include a similar provision. Labour’s proposal was to make provision for applicants to be able to attend information sessions, which would provide advice and make effective use of protection orders, and provide advice on any social assistance that may be available. The Government bill does not provide the court with the power to direct attendance at an addiction assessment and treatment programme. I give the example of a local organisation down the road from Parliament dealing with young people from the age of 11, 12, 13, 14, or 15, some even prior to being born, who were forced by the abuse from people who were supposedly their carer or guardian and who supposedly loved them, to become addicted to some of the bad habits of those people. So there is a real need for a provision in the bill to give the power to direct attendance at an addiction assessment and treatment programme. If a person is addicted to whatever drug, unless they are treated they remain addicted, as I understand it, for a very long time. That point needs to be addressed. We know from what we see in the papers in certain parts of the country that the drug trade is a trade that we have to be concerned about. There are people out there in the community selling drugs even to young kids—kids as young as 8 years old. Labour’s bill also contains better protections and provisions on applications for discharge of protection orders and allows the court to order reports if necessary.

The point is that although this Government may claim that this bill is going to provide the silver bullet to the issue, we have to say that we are supporting it on the basis that we recognise that this is a serious problem and it is a problem that we have to collectively try to address, but we maintain that this bill does not go far enough. If this Government is serious about addressing the bill, and is not playing politics or trying to window dress and lull people into thinking that by putting up all these bills things will be fixed—because they will not be fixed by simply putting up laws—then it would take seriously the submissions made by the Opposition, and the amendments that members on our side are putting up. Mr Simon Power said that he intended to progress the remaining provisions of the Domestic Violence Reform Bill. We would like to know when that will happen. He has not yet set a date. He also said that he lacked resources to go further. One would think that if the issue of domestic violence, the protection of children and their families, is serious this Government would place the issue as a priority rather than give a huge tax cut to its friends and to the small group of elite it is pandering to.

For Labour, tackling the evil of family violence is a genuine priority. The Domestic Violence Reform Bill included on-the-spot protection orders, which have since been implemented. The principle behind this Labour initiative was to make families safe as the first priority. Families should be the first priority. Children should be the first priority. They should be the first priority. If this Government were ever to get it into its thinking that families—young and old, up and down the country, and in their diverse nature as they are today—were the priority, then I think we could be a better nation for it. But I do not believe it will. Many people now see this Government for what it really is. It is attempting to look as if it is genuinely concerned and, on the one hand, says something that might be positive; but, on the other hand, the actions just do not align. In this case, when the Government says that this bill will address domestic violence, and protect children and their families, its actions actually say something very, very different. It is giving away so much taxpayer funding to a small, select group of society, who are its friends. That is what I wanted to say in contribution to this debate.

Hon DAVID PARKER (Labour) Link to this

As other speakers have said, Labour supports this bill, the Child and Family Protection Bill, and it has suggested some Supplementary Order Papers to slightly amend it in a way we think would improve it. Despite what we see in the media, New Zealand has not got a problem with rising crime overall. In fact, crime levels in New Zealand have dropped pretty consistently for the last decade. There have been two exceptions to that, which are of concern to this Parliament and I am sure to people on all sides of the Chamber. One is the weird, really violent kind of crime, which in a way is almost fantasy crime. Some of that is drug-related, relating to P, and it has been on the increase. That has obviously been a concern.

The other area of crime that has been on the increase has been domestic violence. It is a moot point how much of that increase in recorded incidence of domestic violence is occasioned by an increase in the reporting of that violence and how much of it represents an increase in actual violence, but it has probably been a bit of both. Therefore, it is appropriate that we in this Parliament try to do what we can to improve that situation.

Obviously, the biggest things long-term are changes in societal attitudes, and acceptance of violence in communities needs to decrease. But in addition to that, we need to have appropriate legal mechanisms to ensure the proper protection of members of the community. Hilary Calvert, who recently arrived in this Chamber, I know has some experience in these Family Court - related matters. I look forward to her contribution. Protection orders are the mechanism that are available to people to go to the court and say that they need to be protected from a violent person they have been in a relationship with. It is quite common for those protections to be needed—in fact, it is sadly common for those protections to be necessary—not just for the other adult in the relationship but also for the children. It is also a sad reality that most often those protections are needed by women in respect of violence, or the threat of violence, from men.

The point of contention that has become narrowed here, and is really the main point of contention between Labour and National, is what should be done in respect of children under protection orders, as they start to become adults, and also at what point they should move from protection as a child of the family and have some sort of separate legal status, and what ought to be the default position. The position the Government is taking in respect of this legislation is that where children reside in the home, the protection should continue for them until the order lapses. When they leave home, the order should lapse if they are 17 years of age. It is on that narrow point that we disagree with the Government. We have put up two Supplementary Order Papers, and I will be interested to hear the Government’s response to them.

The first that we propose is that the order that has been for the benefit of the child in the family should continue indefinitely for the benefit effectively of the person who is becoming a young adult, until he or she opts to cancel it or until some other party opts to apply to the court to cancel it. It would not be just the child who could apply to cancel it; it could be a parent; it could be someone else who has an interest and thinks that this has now become redundant and ought to lapse.

If people think that is going too far, then we have a second Supplementary Order Paper. We say that at least until that person becomes 18 the protection that the person is afforded through the protection order should automatically follow the person when he or she leaves home and goes into a flatting situation. That seems to me to be a pretty practical middle course, if the Government does not like the open-ended effect of our first Supplementary Order Paper—which we would prefer. This is a narrow point of difference but it is an important point. I can envisage many instances where a lot of young people actually will not give any thought to the effect of their leaving home, on their protective status under a protection order. If it has been necessary to include that child in the name of the protection order in the first place, it seems to me that it is unlikely that the change of place of residence enables us to assume that that necessarily makes that young person safe in their new situation, when they would not have been safe in their original home situation. If they would have been safe in their original home situation, then presumably they would not have been named in the protection order, or some step would have been taken to let that protection order lapse.

That said, we agree that this is good legislation overall. I will not take any more time to speak to other particular parts in the Committee stage, because that would be inappropriate. I just would like to have a response on that narrow point from the Minister in the chair, the Hon Nathan Guy.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

There are a couple of issues that I want to raise on the Child and Family Protection Bill. The first one relates to the question of a discharge of order under section 105 of the Care of Children Act for the return of a child, which is amended byclause 28, which inserts new section 122A into the Act. The issue relates to a case that occurred in my electorate. A constituent of mine had the circumstance where she had had her child in New Zealand but she had become pregnant while she was travelling internationally. She had the child in New Zealand. She made a fundamental mistake: the father of the child followed her back to New Zealand and persuaded her to return with him—I cannot remember to where; the Canary Islands or somewhere like that. She did that, with the child.

By the time she decided she needed to leave, she had been in the country for 12 months and a few days. That meant that the usual, or habitual, place of residence was at that point the new country, where, of course, the main language spoken was Spanish, not English. The father was English and his mother, helpfully for him, was a lawyer who represented him at no cost. She tried to track them—at the end of the world—to New Zealand to bring that child, their only grandchild, back to within their son’s area of protection.

It was a very, very difficult case. All the circumstances were quite devastating. In the end she came back to New Zealand. She did not originally plan to come back to New Zealand for ever; she came back for a bit of time out. She then decided not to return. At that point the question became where the habitual place of residence was located. It was not located in New Zealand, even though by the time the father was insisting upon his rights under the guardianship provisions that exist in those circumstances—because both countries are signatories to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption—the child was, I think, 4 years old and had spent most of its life in New Zealand. It had spent more years of his life in New Zealand and fewer in a country where the first language was not his own, and he could not speak a word of Spanish. It was a very, very difficult case and it went to court. The court was extremely sympathetic to the circumstances that were described. It said that we had to look to Parliament for a resolution of the problem, because the court could interpret the law only as it was. There was no capacity to discharge the order.

This legislation has the provision for discharging the order for the return of a child. The grounds as set out in new section 122A(3)(a)(i) in clause 28 are that the court has to be satisfied that “the child is now settled in his or her new environment in New Zealand; and (ii) having regard to all the circumstances of the case, the discharge of the return order is warranted;”, or that “(b) every other person who was a party to the return proceedings consents.” That was not an issue in this case, because there was no consent, but it was an issue of great concern to the family of the child, as well as some of the wider issues involved.

I am very, very pleased to see that provision finally go through. The one criticism I have is that it was in the original bill introduced to the House by the Hon Annette King, which languishes at the bottom of the Order Paper. This provision could have been included in an earlier bill but it was not because it did not meet that 100-days-of-action mantra that the Government used in those early days. But the Government did use that mantra when it pushed through very urgently part of the original bill. How long is it since the last election? It is 2 years down the track. We finally have this bill going through Parliament, but we have waited a little too long for that provision to go through.

That being said, this bill is welcomed. It is very good law and is reflective of many other jurisdictions. Other jurisdictions that are signatories to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption have adopted the practice of having a provision that allows for discharging the order for the return of a child to occur. I am very, very pleased to be able to speak on the bill, because this is a particular concern to me.

Hon DAMIEN O’CONNOR (Labour) Link to this

Although I was not a member of the Justice and Electoral Committee I can imagine the difficulties the committee members had as they worked through what is, arguably, one of the most sensitive and challenging areas of constituency representation.

I guess there is not an MP in this Chamber who has not confronted a domestic violence issue—not themselves personally, I am not making that judgment—on behalf of a partner or a child. There are cases, as my colleague the Hon Lianne Dalziel said, of children who are caught up in international arguments over where their place of residence should be and whom the adoptive parent should be, and they are some of the most traumatic issues we deal with.

It is not for an MP or, indeed, this House to judge whom the rightful parent should be, but it is for us to put in place law that can assist with the process, and this is what is happening here. Anything that can increase the protection of partners who are exposed to domestic violence should be welcomed into the House.

In reading through the notes I saw a question about whether there are any changes to the Immigration Act.